David Sudduth, Petitioner-appellant, v. Arizona Attorney General; William Gasper, Warden,respondents-appellees, 921 F.2d 206 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 206 (9th Cir. 1990)

Submitted Dec. 3, 1990. Decided Dec. 10, 1990


Before TANG and FARRIS, Circuit Judges.


ORDER

The district court order denying appellant's petition for a writ of habeas corpus was entered on the docket on May 11, 1990. Appellant's notice of appeal from that order was dated June 8, 1990, but was not filed until June 12, 1990. Thus, the notice of appeal was not filed within 30 days of the entry of the judgment, as required under Fed. R. App. P. 4(a).

Because appellant is a pro se prisoner, however, his notice of appeal is deemed filed when it was delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 2382, 101 L. Ed. 2d 245 (1988). Ordinarily, we will remand to the district court for the limited purpose of enabling that court to determine when the prisoner delivered the notice of appeal to prison authorities. See Miller v. Sumner, 872 F.2d 287 (9th Cir. 1989); Miller v. Sumner, 921 F.2d 202 (9th Cir. 1990).

However, under the facts of this case, such a remand is unnecessary. Because appellant's notice of appeal was filed in the district court on the 31st day after entry of the order dismissing his petition, it must have been delivered to prison officials within 30 days. Otherwise, the notice of appeal could not have reached the district court in time to be filed on the 31st day. We decline to remand this case to the district court to require it to repeat this rudimentary calculation. Accordingly, we deem appellant's notice of appeal to be timely. We further note that remands pursuant to Miller could be greatly reduced if prisons implemented a system whereby a prisoner's notice of appeal is stamped with the date it is received by prison authorities.

Appellant's motion "for judgment by default" is denied. Because there is no appearance by appellees, this case is deemed ready to calendar.